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OSJCL Amici: Views from the Field

Herring v. United States

The main issue of contention is the exclusionary rule. The basic facts are that Bennie Dean Herring entered a Coffee County sheriff’s department for an unrelated matter. One of the officers there, believing that a warrant existed for Herring, did a warrant check, calling nearby Dale County to determine if there was a warrant out. Having been told that a warrant existed, police followed and pulled over Herring’s car, and proceeded to search his truck, uncovering methamphetamine and a pistol. However, unknown to these officers, the warrant they believe existed had actually been recalled. Herring was charged with possession of both the weapon and drugs, and at trial attempted to have this evidence suppressed under the grounds that police officers lacked reasonable grounds for the search.

The magistrate and district judge both ruled against Defendant Herring, holding that the search was conducted in good faith belief that the arrest warrant was outstanding. On appeal the District court found that three conditions were necessary for the exclusionary rule: 1. misconduct by policy or adjuncts to the law enforcement team, 2. application of rule my result in appreciable deterrence of misconduct, and 3. benefits of rule’s application must not outweigh its cost. Finding none of these conditions met, the 11th Dist. Ct. of Appeals affirmed.

Laws Against "Sagging Pants" Ruled Unconstitutional

A judge in southeast Florida held that the city's law criminalizing "sagging pants" is unconstitutional. The law, recently passed by Riviera Beach voters, carries a $150 fine for first-time offenders, with repeat offenders facing the possibility of jail time. Laws such as this one have been increasingly popular throughout the country and have caused many civil rights advocates to caution that they may disproportionately target African-Americans.

A Push for "Open Discovery"

The fight for "open discovery" in Ohio criminal cases received more support recently with the discovery of numerous ethical violations by former Cuyahoga County assistant prosecutor Carmen Marino. Marino, who has since retired, was shown to have offered immunity to a witness testifying in a prominent 1987 murder trial and then allowed the witness to deny that such immunity had been offered during his testimony. The latest example has provided further ammunition for those seeking open discovery in Ohio, a practice which would require the prosecution to share with defense lawyers any evidence that could benefit their client. Proponents of the current "closed discovery" practice counter that the current system, among other benefits, protects witnesses from potential retaliation.

Detroit's Tainted Crime Lab

The Detroit Police crime lab has been closed indefinitely due to a pattern of mishandling evidence and returning incorrect findings on ballistics tests. A recent study showed the lab erred in approximately 10% of its tests, a finding that could result in countless appeals and the overturning of numerous convictions. Among other disturbing findings, the lab was shown to have restricted access to evidence, to have administered no competency tests for its employees, and to have exposed much of the evidence in its possession to contamination.

Good news for OJ Simpson on the legal front. Simpson, standing trial in Las Vegas for robbery and kidnapping stemming from a 2007 altercation with memorabilia dealers, received support yesterday from a surprising source: Prosecution witness Alfred Beardsley. Beardsley, one of the two dealers alleged to have been victimized by Simpson and a group of others, expressed skepticism as to the authenticity of a key piece of evidence, a recording of the altercation secretly made by one of the men who accompanied Simpson. Beardsley testified that many parts of the event appear to have been removed and refused the prosecution's request that he authenticate the tape as a true recording of the event as it unfolded.

German police removed two suspected terrorists from a plane in Cologne, Germany. The men, two Somali nationals who allegedly were intent on waging a holy war against non-Islamic nations in the West, are said to have written farewell letters prior to boarding the plane. It is uncertain what specific plans the men harbored.

Mandatory DNA Sampling Under Fire

New Hampshire is addressing a growing-and often controversial-practice of collecting DNA samples of all criminal offenders upon their arrival in prison. The state, which currently collects samples from all individuals convicted of sexual offenses and adults convicted of "violent crime," is suspending its practice of collecting samples from juveniles convicted of non-sexual offenses until the legality of the practice can be confirmed. The New Hampshire Civil Liberties Union has opposed the practice as overly intrusive and beyond the reach of the statute allowing the collection of samples from certain individuals.

Those looking for answers to the cause of the current U.S. financial crisis have found a new possible answer: criminal fraud. Investigators from the FBI have begun looking into possible criminal fraud on the part of those at lending institutions such as Freddie Mac, Fannie Mae, Lehman Brothers, and AIG. Charges reportedly may be forthcoming against those who, among others, wrote fraudulent home loans to borrowers who were not able to afford them and those who have destroyed documents or otherwise attempted to alter evidence of wrongdoing.

India is resisting pressure to discard Section 377 of its criminal code, a provision which criminalizes homosexuality. Stating that doing so would disturb the law and order situation and create many problems in society, the nation is retaining the law, which allows imposition of up to a life sentence for engaging in homosexual activity. Activists opposing the law have countered by claiming that the law violates India's constitution and renders homosexuals second-class citizens.

Officials reported that parole officers began contacting sex offenders well in advance of the storm. About 1,000 sex offender parolees displaced by Hurricane Ike have been rounded up and sent to prisons and jails across the state. Some registered sex offenders, including those who completed the terms of their parole, have been turned away from shelters. An Austin police detective responded, saying: ‘It's a difficult situation but ultimately we're concerned about the (general public).’

Police Tactics in '75 Murder Case Debated

A mentally impaired man was convicted; now another man is charged for the crime he was convicted of. Moore implicated himself during interrogation. Thirty-three years after conviction -- two years after Moore's death -- the case was reopened, and police charged an Emporia sex offender with the slaying. The author writes, “If Moore is cleared, it will not be the first time DNA has proved that a mentally impaired person made a false confession in a Virginia murder investigation.”

FBI Investigate the Death of Alleged Cop-Killer Ronnie White

Maryland's medical examiner has concluded a jail inmate accused of killing a police officer was strangled in his cell. The Prince George's County Jail has had several security lapses and allegations of misconduct by guards in recent years. Investigators will question seven correction officers with access to White’s cell.

Although some say the United States Supreme Court is the most respected Court in the world, there is an intense and growing debate about whether that influence should be a one-way street. The rise of new and sophisticated constitutional courts elsewhere is one reason for the Supreme Court’s fading influence. Furthermore, the new courts are generally more liberal than the Rehnquist and Roberts courts and, for that reason, more inclined to cite one another. So, should the U.S. Supreme Court consider international law in their decisions? The article points out that Justice Anthony Kennedy is arguably one of the strongest advocates for considering international law, referring to his majority opinion in Roper v. Simmons, the 2005 decision that struck down the death penalty for juvenile offenders.

According to a report issued by the Justice Department, over a five-year period, the Bureau of Alcohol, Tobacco, Firearms and Explosives lost dozens of weapons and hundreds of laptops that contained sensitive information. According to the report, firearms were left in public places and two weapons were subsequently used to commit crimes. Of the 20 missing laptops for which information was available, ATF indicated that seven held sensitive information, such as bank records and financial transactions.

In a 5-2 opinion that reversed the conviction and 15-year sentence of George Baptiste for possession of a firearm by a convicted felon, the Florida Supreme Court held that police cannot stop and search people based solely on anonymous tips. Conducting a search based solely on anonymous tips does not amount to reasonable suspicion; therefore, doing so violates a defendant’s constitutional right against unreasonable searches and seizures.

The Florida Department of Law Enforcement closed a sex-related criminal probe of former U.S. Rep. Mark Foley on Friday without filing charges. Authorities were investigating whether the Florida Republican, who resigned in September 2006, might have used congressional computers to engage or solicit minors in any illegal activities. Officials said they were hindered by refusal from Foley and the House of Representatives to allow inspection of the computers.

On September 15, 2008, the FBI released statistics suggesting that violent crime in the United States fell slightly last year, reversing the upward wing of the previous two years. About 1.4 million violent crimes occurred in 2007, down 0.7 percent from 2006. More specifically, murder fell by 0.6 percent, rape by 2.5 percent, robbery by 0.5 percent and aggravated assault by 0.6 percent.

Travis Judge Tells Woman to Stop Having Kids

The constitutionality of a Texas probation order is now being hotly contested. A Texas judge ordered a woman to stop having children after she was convicted for failing to provide protection and medical care for her 19 month-old daughter.

Jury selection has concluded in OH Simpson's latest trial. The judge has spent time to remind the jury they are not to consider Simpson's mid-90's trial for murder. Voir dire began in August with a jury pool of more than 500 people.

Texas Death Row Inmate Has Execution Postponed

A Texas Court of Appeals is reviewing whether the jury instructions provided in a capital murder case were improper. In addition, allegations have surfaced that the prosecutor and judge in the case were involved in an intimate personal relationship.

Censure for 2 Ex-Prosecutors in Colrado Murder Case.

Judges that were former prosecutors were censured, nearly 10 years after a trial, when they admitted that they had withheld exculpatory evidence from defense counsel in a murder trial. The issue came to light when the inmate currently being held for the murders did not match DNA from the crime scene.

A defense lawyer from New York has found himself on the wrong side of the table. He is now on trial for witness tampering and among the allegations is one that he offered a man $1,000 to "do what it takes" to eliminate a witness from testifying.

Former Super Bowl Star Going to Prison

Former Super Bowl star Mark Ingram is heading to prison for the next 7 to 9 years after acquiring approximately a half-million dollars through money laundering and phony check cashing schemes.Ingram, who pleaded guilty to the offenses in 2007, has recently submitted a number of bizarre motions to the Court, questioning its jurisdiction over evidence and his ability to be prosecuted in an American court due to an alleged “certified diplomatic status.”

British authorities are turning to social networking sites such as Facebook, MySpace, and Bebo in an attempt to track down the mother of a newborn whose body was recently discovered in a Worcester-area recycling facility.In utilizing the sites, authorities are asking local teens to report any suspicious behavior or other evidence they may have that could help to determine the identity of the baby’s mother.

The Eleventh Circuit Court of Appeals has ruled that Fulton County’s practice of strip-searching all incoming inmates, regardless of the severity of their crime, is not overly intrusive and thus is constitutionally permissible.In ruling on this claim, brought by five inmates whose offenses included DUI and failure to pay child support, the Court stressed the high danger level associated with the prisons and the corresponding need to prevent the smuggling of contraband into the facilities.Further, the Court

Federal prosecutors’ attempts to imprison MLB slugger Barry Bonds have escalated.As former trainer Greg Anderson persists in his refusals to testify against Bonds, the government is now targeting the wife and mother-in-law of Anderson in connection with Bonds’ prosecution.Anderson, who has previously served a one year contempt of court sentence in connection with the case, served as Bonds’ trainer and could prove key in the government’s attempts to prove that Bonds committed perjury when testifying that he never knowingly used steroids.

Charges have been dropped against a New York man alleged to have assaulted a New York City police officer in July.The incident between the defendant, Christopher Long, and the police officer was captured on amateur video and later posted on the Internet.In the video, Long appears to have been tackled off of his bicycle after showing no aggression toward the officer.The officer has since been re-assigned to desk duty, while Mr. Long states that he’s “relieved…to go back to normalcy.”

Critics have recently attacked Massachusetts DNA preservation laws, alleging that the state both fails to preserve key DNA evidence and provides no rights for accused individuals to submit their DNA in an effort to prove their innocence.The issue has most recently been in the spotlight in light of police collection –and subsequent refusal to return or destroy- of a number of DNA samples in connection with a 2002 Cape Cod murder.The ACLU recently filed a lawsuit regarding this DNA collection, alleging that such a database is overly intrusive.

A federal judge in Los Angeles has rejected a motion to dismiss charges against a woman whose cyber-bullying of her teenage neighbor allegedly led to the teen committing suicide in 2006.In allowing the case to proceed to trial, the Court held that the Computer Fraud and Abuse Act, which has historically been used to prosecute computer hackers, is broad enough to apply to the defendant’s alleged acts of bullying in this matter.

An Arizona prosecutor has a novel approach to combat drunk driving: a public registry.If adopted, this plan would create a database of those convicted of driving under the influence in the Phoenix area, with a select group of individuals’ mug shots being placed on billboards throughout the area.

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